# GUYrA v. MUNC. CORPN., BOMBAY (Mitter, J,)

- **Citation:** [1968] 1 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 1967-08-21
- **Case number:** Writ Petitions Nos. 215, 228, 251 and 256 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/guyra-v-munc-corpn-bombay-mitter-j-4120
- **Pages:** 26

## Headnote

K. L. GUPTA & ORS.
"·
THE BOMBAY MUNICIPAL CORPORATION AND ORS.
August 21, 1967
[K. N. WANCHOO, C.1 .. R. s. BACHAWAT, v. RAMASWAMI, G. K.
MITTER AND K. S. HEGDE, 11.)
Bombav Town Planning Act, 1954, ss. 9, 10, 11, 12 and fil-Whether violative of Articles 14 and 19 of the Constitution.
The petitioners were owners of certain land in Greater Bombay in respect of which a declaration of intention under s. 4(1) of
the Bombay Town Planning Act, 1954, to prepare a development
plan had been made by the respondent Bombay Municipal Corporati~n. They applied to the Municipal Commissioner,. in January
1962, for permission to change the existing user of their land and
for a commencement certificate under s. 12 to construct factory
sheds on a part of the land, but their application was rejected by
the Executive Engineer, Development Plan. A tentative develoir
ment plan for the area which included the petitioner's land was
published on January 9, 1964, in which their land was shown as
partly reserved for public roads, partly for industrial purposes and
the rest was marked green. After a large number of objections and
suggestions on the tentative plan had been received and considered
in accordance with the provisions of s. ~ of the Act, the Municipal
Cori>oration finally approved the plan on July 2, 1964 and forwarded it to the State Government for its sanction under s. 10. The
State Government sanctioned the final development plan for the
ward in which the petitioners' lands were located on Septemter 14,
1966 after consulting its special Consulting Surveyor, who scrutinised all the objections received' by the Municipal Corporation and
heard the objectors. The final plan showed that a major portion of
the petitioner's land was earmarked for a recreation centre.
Although a writ petition filed by the petitioners before the
publication of the tentative development plan against the rejection
of their application for a commencement certificate was allowed by
the High Court on the ground that powers of the Municipal Corporation under s. 12 had not been exercised by an officer prescribed
under s. 86, two subsequent petitions filed by them after the approval of the final plan by the Municipal Corporation to obtain redesignation of their land were dismissed.
1n the present petition under Art. 32 of the Constitution, the
petitioners claimed that after the reservation of their land as shown
in the tentative plan published on January 9, 1964, its redesignation
in the final plan for a recreation centre was without authority of
law and violative of their rights under Arts. 14 and 19. It was contended, inter aiia, (i) that sections 9 and 10 of the Act were invalid
and unconstitutional in that they empowered the local authority and
the State Government to modify, as a result of objections received
from other persons, a development plan, against which a particular
person may not have objected, without giving an opportunity to
that person to represent against a subsequent modification ty which
his interest may be adversely affected; (ii) that under s. 12 the final
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GUYrA V. MUNC. CORPN., BOMBAY (Mitter, J,)
275
and only authority who had the power to grant or withhold permission to carry on any development work after a declaration of intention under s. 4(1) was the Municipal Commissioner; he could, under
s. 13, grant or refuse a commencement certificate at will, th~re
being nothing to guide him in such a matter before the preparation
of a development plan;· even after the preparation of such a plan, a
commencement certificate could be refused arbitrarily and there
was no provision for any appeal from or revision of the order
containing the refusal; and (iii) that by. the combined operation of
ss. 4 ancll 11(3), the local authority could easily delay the acquisition of any land designated for a public purpose under s. 7 of the
Act for 14 years and this constituted an unreasonable restriction
on the right to hold property.
H

## Text

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K. L. GUPTA & ORS.
"·
THE BOMBAY MUNICIPAL CORPORATION AND ORS.
August 21, 1967
[K. N. WANCHOO, C.1 .. R. s. BACHAWAT, v. RAMASWAMI, G. K.
MITTER AND K. S. HEGDE, 11.)
Bombav Town Planning Act, 1954, ss. 9, 10, 11, 12 and fil-Whether violative of Articles 14 and 19 of the Constitution.
The petitioners were owners of certain land in Greater Bombay in respect of which a declaration of intention under s. 4(1) of
the Bombay Town Planning Act, 1954, to prepare a development
plan had been made by the respondent Bombay Municipal Corporati~n. They applied to the Municipal Commissioner,. in January
1962, for permission to change the existing user of their land and
for a commencement certificate under s. 12 to construct factory
sheds on a part of the land, but their application was rejected by
the Executive Engineer, Development Plan. A tentative develoir
ment plan for the area which included the petitioner's land was
published on January 9, 1964, in which their land was shown as
partly reserved for public roads, partly for industrial purposes and
the rest was marked green. After a large number of objections and
suggestions on the tentative plan had been received and considered
in accordance with the provisions of s. ~ of the Act, the Municipal
Cori>oration finally approved the plan on July 2, 1964 and forwarded it to the State Government for its sanction under s. 10. The
State Government sanctioned the final development plan for the
ward in which the petitioners' lands were located on Septemter 14,
1966 after consulting its special Consulting Surveyor, who scrutinised all the objections received' by the Municipal Corporation and
heard the objectors. The final plan showed that a major portion of
the petitioner's land was earmarked for a recreation centre.
Although a writ petition filed by the petitioners before the
publication of the tentative development plan against the rejection
of their application for a commencement certificate was allowed by
the High Court on the ground that powers of the Municipal Corporation under s. 12 had not been exercised by an officer prescribed
under s. 86, two subsequent petitions filed by them after the approval of the final plan by the Municipal Corporation to obtain redesignation of their land were dismissed.
1n the present petition under Art. 32 of the Constitution, the
petitioners claimed that after the reservation of their land as shown
in the tentative plan published on January 9, 1964, its redesignation
in the final plan for a recreation centre was without authority of
law and violative of their rights under Arts. 14 and 19. It was contended, inter aiia, (i) that sections 9 and 10 of the Act were invalid
and unconstitutional in that they empowered the local authority and
the State Government to modify, as a result of objections received
from other persons, a development plan, against which a particular
person may not have objected, without giving an opportunity to
that person to represent against a subsequent modification ty which
his interest may be adversely affected; (ii) that under s. 12 the final
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GUYrA V. MUNC. CORPN., BOMBAY (Mitter, J,)
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and only authority who had the power to grant or withhold permission to carry on any development work after a declaration of intention under s. 4(1) was the Municipal Commissioner; he could, under
s. 13, grant or refuse a commencement certificate at will, th~re
being nothing to guide him in such a matter before the preparation
of a development plan;· even after the preparation of such a plan, a
commencement certificate could be refused arbitrarily and there
was no provision for any appeal from or revision of the order
containing the refusal; and (iii) that by. the combined operation of
ss. 4 ancll 11(3), the local authority could easily delay the acquisition of any land designated for a public purpose under s. 7 of the
Act for 14 years and this constituted an unreasonable restriction
on the right to hold property.
Held: The objections raised as to the invalidity of sections
9, 10, 11, 12 and 13 could not be upheld.
(i) The contention that a person was given no opportunity of
meeting the objections raised by others with regard to the development plan has no force in the light of the facts disclosed as to the
enormity of the task of finalising the development plan. If the
authorities were to hear all the parties with regard to all the suggestions made, give them separate and independent hearings, no
development plan could ever be prepared. The authority was not
concerned with con~idering the advantages or disadvantages which
might accrue to a particular person or a group of persons owning
lands in different parts of the area concerned, but it had to go by
the larger interc>st of the population at large and the generations
to come. The affidavits show that nothing was done haphazardly.
Suggestions and objections at all stages were carefully considered,
the assistance of committees of experts
was taken and the plan
emerged only after an immense amount of lat our had been bestowed in its preparation; [297B-D]
(ii) There was enough guidance in the Town Planning Act to
enable the Municipal Commissioner to come to a conclusion as to
whether a particular commencement certificate should. be granted
or not and the power exercisable under ss. 12 and 13 was neither
uncanalised nor arbitrary. S. 13 prescribes that the local authority
should make an inquiry before granting or refusing a commencement certificate. The Authority must therefore look into all material available to it including the tentative plans and the final development plan and then make
u~ its mind as to whether a commencement certificate should be granted or not, If the provisions
of the Act are borne in mind and the rules framed thereunder
complied with, there was little or no scope for the local authority
acting arbitrarily under s. 13 of the Act. [298A-C]
The fact that no appeal from the decision upder s. 13 was provided for is a matter of no moment for the authority under s. 13
is no less than the Municipal Commissioner himself or the Chief
OHicer of the Municipal Borough or a person exercising the power
of an Executive Officer of any local authority .. When the power
had to be exercised by one of the highest officers of the local authority intimately connected with the preparation of the development
plan in all its stages, it is difficult to envisage what other authority
could be entrusted with the work of appeal or revision. [297F-H]
(iii) In view of the immensity of the task of the local authorities
to find funds for the acquisition of lands for public purposes, a
period of ten years fixed by s. 11(3) was not too long. -In the present case the authority had to deal with an area measuring about
169 sq. miles which was larger than most of the big cities in India.
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[1968] l s.o.a.
The preparation of a development plan for such an area must take
a considerable period of time. Furthermore, it is not beyond the
' range of possibility that the final development plan may require
modifications. It could not therefore be held that the limit of time
fixed under s. 14 read with s. 11 (3) formed an unreasonable reslriction on the right to hold property. [298G-229A]
Joyti Pershad. v . . Administration for The Union TerrikJry of
Delhi, (1962) 2 S.C.R. 125 Manecklal Chhotalal & Ors. v. M. G. Makwana and Ors; W.P. 64/1966, cases, relied upon.
ORIGINAL JURISDICTION: Writ Petitions Nos. 215, 228, 251
and 256 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
K. R. Chaudhuri and K. Raiendra Choudhury, for the petitioner (in W.P. No. 215 of 1966).
A. S. R. Chari, S. B. Naik, K. Rajendra Chaudhury and
K. R. Chaudhuri, for the petitioners (in W. Ps. Nos. 228 and 251
of 1966).
B. Sen, Rameshwar Nath and Mahinder Narain, for the peti·
tioner (in W.P. No. 256 of 1966).
Purshottam Trikamdas, G. L. Sanghi and J. B. Dadachanji,
for the respondents Nos. 1-3 (in W .Ps. Nos. 215, 228 and 256
of 1966) and respondents Nos. l and 2 (in W.P. No. 251 of 1966).
M. S. K. Sastri and S. P. Nayar, for respondent No. 4 (in
W. Ps. Nos. 215, 228 and 256 of 1966) and respondent No. 3 (in
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The Judgment of the Court was delivered by
Mitter, l: This is a group of four writ petitions filed under
Art. 32 of the Constitution. The common attack in all these
petitions is against the validity of certain sections of the Bombay
Town Planning Act, 1954, hereinafter referred· to as the Act.
The petitioners are all owners of plots of land in areas round
about Bombay, commonly known as Greater Bombay. They have
all similar but separate grievances with respect to the development plan prepared and published under the Act. In Writ Petition No. 215 of 1966, the petitioner's complaint is as regards his
land being earmarked for the public purpose of a park in the
Development Plan prepared under the Act. He seeks to prevent
the respondents from ~iving effect to the said designation of lands
in the Development Plan and in particular, to have the third respondent's order i.e. the Executive Engineer (Planning) (of the
1 Municipal Corporation of Bombay) dated I Ith August, 1964 to
, the effect that his lands were needed for the public purpose of a
• park quashed. In Writ Petition No. 228 of 1966 the prayer is
that the designation of the petitioners' land as being earmarked
for recreation centre and for green belt in the development plan
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of 'P' Ward of the City of Greater Bombay should be removed,
that their lands should be redesignated as earmarked for industrial purpose, that the order of the Assistant Engineer, Bombay
Municipal Corporation, rejecting the petitioners' proposal for
construction of two factory buildings and lavatory blocks should
be quashed and a declaration be made that ss. 9, 10, 11, 12 and
13 of the Bombay Town Planning Act are ultra vires the Constitution of India. In Writ Petition No. 251 of 1966 the prayers
include an order for quashing Resolution No. 1173 of December
19, 1963 and Resolution No. 343 of July 2, 1964 of the first respondent and for removal of the designation attached to the petitioners' land as reserved for Government purposes in the Deve- ·
lopment Plan of 'P' Ward of Greater Bombay. In Writ Petition
No. 256 of 1966 the prayers are inter alia for the issue of writs
declaring that the Development Plan submitted by the first respondent to the fourth respondent (including P Ward) on July 3,
1964 infringes the petitioners' rights and directing the issue of a
commencement certificate for the development and utilisation of
the said land in the manner proposed. At the hearing, a further
prayer was made for urging an additional ground in all the writ
petitions challenging the validity of s. 17 of the Act.
We may consider the broad facts in Writ Petition No. 228
of 1966 by way of sample. The petitioners in this case are two
persons who claim to be owners of land bearing S. No. 70, Hissa
Nos. 4, 5 and 6 comprising an aggregate area of 31,641 sq. yds.
approximately in village Pahadi at Goregaon in Greater Bombay.
Their case is that they had applied through their architect on
January 2, 1962: for permission to change the existing user of their
lands by putting them to industrial use and had written a letter
to the Municipal Commissioner of Bombay for that purpose by
which they proposed to construct on a portion of the land. in
S. No. 70 Hissa No. 4 a shed for a factory and other necessary
sheds.
Along with the said letter, they gave a notice under s. 33
of the Bombay Municipal Corporation Act, 1888 of their intention to erect a factory shed on the said land with a request for
approval thereof.
<?n _January 27, 1.9~2 the Executive Engineer,
Development Plan, mhmated the petlhoners that as a major portion of the proposed factory shed intended to be constructed fell
outside the heavy industrial zone in the green belt area as shown
in the plan accompanying the letter and as the area was affected by
net work of proposed 78' East West and 30' wide North South
roa~ under the development plan of the area, with only a small
portion. of the land shown coloured violet falling in the heavy
mdustr!'ll area, a commencement certificate could not be granted.
By their letter ~ated ~arch 13, 1962 the petitioners complained
that the Executive Engmeer, Development Plan, had no authority
to earmark any area for green belt and therefore he should reconsider the matter and grant a commencement certificate. On the
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SUPREME COURT Rl!ll'ORTS
[1968) 1 S.C.R.
same day, the petitioners also wrote to the Municipal Commissioner that inasmuch as they had not till then received the notice
of disapproval or any further requisition concerning their application, they would place on record that their right to proceed with
the construction of the intended shed had become absolute under
s. 345 of the Bombay Municipal Corporation Act. On March
22, 1962 the Deputy Mpnicipal Commissioner (Suburbs) acknowledged receipt of the letter. By letter dated April 18, 1962 the
Executive Engineer. Development Plari, informed the petitioners
that their request for a commencement certificate would not be
reconsidered until the development plan was finalised. By their
solicitor's letter dated June 13, 1962 the petitioners wrote to the
!st respondent, i.e. the Bombay Municipal Corporation, that the
· refusal to grant a commencement certificate was wrongful. This
· was followed up by a writ petition in the High Court of Bombay
being Miscellaneous Petition No. 256 of 1962 challenging the said
refusal as illegal and invalid. By order dated September 7, 1963 the
High Court of Bombay allowed the petitioners'
application on
the ground that the powers and functions of the Bombay Municipal Corporation under s. 12 of the Act had not been exercised by
an officer prescribed under s. 86 of the Act and the decision dated
January 27, 1962 was liable to be set aside.
The development plan for Greater Bombay (D Ward) was
adopted by the first respondent by resolution No. 1173 on December 19, 1963. By this resolution the second
respondent was
directed to submit proposals of the development plan in respect
of the remaining wards including Ward P in which the petitioners'
land was situated. On January 9, 1964 the development plan for
the remaining wards including Ward P was published by the
second respondent in the name of the first respondent. Jn this
the petitioners' land was shown as partly reserved for public roads.
for industrial purposes, the major portion being merely marked
by green colour. The petitioners' complaint is that the list of
sites reserved for public purposes was for the first time submitted
by the second respondent to the Development Committee on
February 8, 1964 s)lowing for the first time that a major portion
of the petitioners' lands were earmarked for a recreation centre.
This list was recommended for acceptance by the Committee to
the first respondent on June 24, 1964 and approved by resolution
No. 343 on July 2, 1964 and forwarded to the State of Maharashtra, the fourth respondent herein, on July 8,
1964. The petitioners complain that although in the plan as originally published
the lands of the petitioners were earmarked partly for public roads
in an industrial area and merely marked by green colour without
any specification and designation, by resolution No. 343 the first
respondent departed from the development plan and included a
portion of the lands for recreation centre amongst the sites reserved for public purposes. · According to the petitioners, this redesignation and modification was made although there were no
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suggestions before the first, second and third respondents in the
light of which any modification could have been made under 5. 9
of the Act. The petitioners by their solicitor's letter dated April
16, 1964 requested the respondents to alter the development plan
in accordance with the decision of the Bombay High Court and
further demanded
re-designation of their lands as reserved for
industrial purpose. This matter was again taken up to the High
Court of Bombay by way of petition No. 248 of 1964 challenging
the ref\l~al of the first and second respondents to modify the development plan. This was rejected in limine by the High Court on
July 6, 1964. The appeal therefrom being No. 42 of 1964 was
also rejected on August 12, 1964. The petitioners' case is that
the High Court rejected petition No. 248 of 1964 on the view that
they had no cause for complaint unless and until the first respondent refused permission to commence· construction. They therefore submitted building plans through their architect on January
9, 1965 for construction of a factory shed with a praY,er for the
issue of a commencement certificate. The third respondent i.e.
the Assistant Engineer, Bombay Municipal Corporation by letters
dated January 25, 1965 and February 13, 1965 rejected the petitioners' proposal for construction of factory buildings on their
lands on the ground that the lands fell in the reservation for playgrounds and 200 feet wide green belt in the development plan.
The petitioners again went up to the Bombay High Court on
July 2, 1965 by another petition No. 312 of 1965 for. the issue of
a writ of mandamus for setting aside the' orders of the third re~
pondent dated January 25, 1965 and February 13, 1965 and directing the respondent to remove the designation of recreation centre
and green belt from the petitioners' land and to designate the entire holding as industrial area in the development plan. The petition was rejected in limine by the Bombay High Court on July 6,
1965.
An appeal therefrom came for hearing on August 10, ·1965
when an order was made by consent directing the writ petition
to be placed for hearing before a Division Bench. Ultimately,
however, this was dismissed by judgment dated April 25, 1966.
According to the petitioners, they had not challenged the constitutionality of the Act in their petitions.
In the _present petition to this Court the substantial complaint
is that their lands were earmarked in the development plan originally published on January 9, 1964 by green colour without
assigning any purpose and tlie reservation and re-designation of
these lands for recreation centre and green belt by the first, second
and third respondents in the development plan finally adopted was
in contravention of s. 9 of the Act. This re-designation is challenged as being without authority of law and violative of the
fQ11damental rights of the petitioners inter alia under Arts. 14 and
19 of the Constitution.
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SUPREME COURT REPORTS
[1968] I s.0.11.
In the aflida vit in opposition filed on behalf of the first respondent, reference is made to· the manner and the course of preparation of the development plan set out in greater detail hereafter. A preliminary objection was taken, formulated in some
detail, that on the failure of the petitions in the Bombay High
Court, the petitioners could not re-agitate the matter in this Court
on principles analogous to res judicata. It is not n~
to go
into that question or take note of the correspondence which passed
between the parties and/ or their solicitors up to 1964. According to the affidavit, the lands belonging to the petitioners were
shown in the draft development plan as published on 9th January
1964 as reserved for green belt, for public roads with a path being
shown as falling in the industrial zone. The deponent, the
Executive. Engineer (Planning) stated that the.suggestions and objections received after the publication of the draft plan were carefully considered by the Development Committee which submitted
its report with its recommendations tb the first respondent for its
approval and such approval was given on July 2, 1964.
Ultimately, the plan was sanctioned by the fourth respondent after
consulting the
Special Consulting Surveyor subject to certain
modifications. The petitioners' solicitor's letter dated April 16,
1964 was placed before the Development Commitee for due consideration. The Development Plan Committee considered the suggestions made by the public and gave a report in respect thereof
to the first respondent from time to time who finalised the plan
at its meeting held on July 2, 1964. According to the deponent,
the letters dated January 25, 1965 and February 13, 1965 addressed by the third respondent were in proper exercise of the right of
rejection of the petitioners' proposal for construction of a factory
building. Finally the deponent stated that no part of the petitioners' lands were earmarked for green belt in the development
plan as finally approved by the respondent, that out of 32,000 sq.
yds. of the petitioners' lands, 12,144 sq. yards of land had been
earlljiirked and reserved for playground 804 sq.
yds. had been
earmprked and reserved for municipal wholesale market, 7.821
sq. yds. had been ear~arked and reserved for public road, 1,167
sq. yds. fell under residential zone and the balance of 8,702 sq.
yds. fell in the indu3trial zone.
ft will therefore be noticed that the facts as laid in the petitions are not all admitted in the affidavit, but nothing was sought
to be made out of this and one common argument as to the invalidity of the different sections of the Act was advanced in great
detail mainly by Mr. Chari who was followed by Mr. Sen and
Mr. Chaudhuri. In substance, the united attack was against the
validity of the different sections mentioned in detail. hereafter.
Before examining the contentions on the points of law raised
in this case, it is necessary to appreciate what the Act sought to
achieve andl why it was brought on the statute book. In order
to do this, it is necessary to take stock of the position at the time
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of its enactment so that attention may be focussed on the situa·
tion calling for a remedy and how the legislature sought to tackle
it. It is common knowledge that for a number of years past, all
over Indi.a, there has been and is continuing a great influx of
people from the villages to towns and cities for the purpose of
residence and employment. Besides this, the whole of the coun·
try is in the grip of a population explosion. Another circumstance
to be reckoned with is that industria1 development is taking place
in and round about many cities which in its turn is attracting
people from outside. Most of our towns and cities have grown
up without any planning with the result that public amenities
therein are now being found to be wholly inadequate for the
already enlarged and still expanding population. The roads are
too narrow for modern vehicular traffic. The drainage system,
such as it obtains in most of the towns and cities, is hopelessly
inadequate to cope with the requirements of an already overgrown
population. In most of the towns and cities there is no room for
expansion of public amenities like hospitals, schools, colleges and
libraries or parks. Some improvement has been sought to be
made by Town Improvement Acts enacted in the different States.
In order that the suburbs and the surroundings of towns and
cities be developed· properly and not allowed to grow haphazard,
the Legislature bf Bombay felt that towns should be allowed to
grow only on planned schemes formulated on the. basis of a development plan. All "local areas" which may· be equated roughly
with municipalities were to have development plans so that an
overall picture might be taken of the needs of the expanding town
or city and provision made for planned development with regard
to roads and streets, sanitary arrangements like drainage and
water supply, places of public utility, industrial development etc.
The legislature was well aware of the practical difficulties and the
magnitude of the task.
A development plan for a huge area like
Greater Bombay could not be formulated within a space of weeks
or months.
A survey had to be made of the area under the local
authority to take note of the existing conditions and the plan prepared keeping in mind the facilities available and those which
might be had in the forseeable future. Sections of the area have
to be set apart in the different focalities for industrial and comme~cial development. for private housing, for the purpose of the
Umon or the State, for educational and other institutions, as also
for parks an~ places of public resort. The authority responsible
for the drawing up of the plan had to have regard to the wishes
and su¥gestio!ls . of the publi~ and ~n particular, architects, engineers, mdustnahsts and public bodies. Of necessity, a skeleton
plan had t~ be sketched. at fir.st which co.uld' be given a final shape
afte~ c.ons1derable dehberatmn followmg the suggestions of the
parties mtcrested and the recommendations received. Let us now
see how the Legislature of Bombay sought to tackle this huge
problem.
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[1968] 1 S.O.B.
The Act is described as one to consolidate and amend the
Jaw by making and executing town planning schemes. The
preamble to the Act shows that its object was to ensure that town
planning schemes were made in a proper manner and their execution was made effective by local authorities preparing development plans for the entire area within their jurisdiction. A "deve·
Jopment plan" under the Act means a plan for the development
or re-development or improvement 0€ the entire area within the
jurisdiction of a local authority. A local authority is defined as
a municipal corporation or a municipality and includes some
appointed committees as also panchayats constituted under the
'different Acts. Chapter II containing ss. 3 to 17 relates to development plans generally. S. 3(1) provides that as soon as may be
after the coming into force of the Act, every local authority shall
carry out a survey o~ the area within its jurisdiction and prepare
and publish in the prescribed manner a development plan and
submit the same to the State Government for sanction. The limit
of time for this purpose was four years. Sub-s. (3) authorised the
State Government to make an order for extension of the time fixed
by sub-s. (!) for adequate reasons. Sub-s. (4) authorised the State
Government, in case a development plan was not prepared and
published in terms of sub-s. (]), to prepare and publish such a
plan itself after carrying out the necessary surveys. Under sub-s.
(!) of s. 4 even before carrying out a survey of the area referred
to in sub-ss. (1) and (2) of s. 3, for the purpose of preparing a
development plan for such area, the local authority was obliged
to make a declaration of its intention to prepare such a plan and
to despatch a copy thereof to the State Government for publication and publish the same itself in the prescribed manner for inviting suggestions from the public within a period of two months.
Under sub-s. (2) a copy of the plan was to be open to the inspection of the public at all' reasonable hours at the head office of the
lo.:al authority. Ss. 5 and 6 provided for the manner of preparing
development plans and the authorisation of certain persons to enter upon, survey and mark out that land for the preparation of
the plan.
S. 7 indicated the manner in which the development
and improvement of the entire area within the jurisdiction of the
local authority was to be carried out and regulated. In particular, it had to contain seveFal proposals, namely:-
(a) for designating the use of the land for the purposes such
as (l) residential, (2) industrial, (3) commercial, and (4) agricultural;
(b) for designation of land for public purposes such as parks,
playgrounds, recreation iirounds, open spaces, schools, markets or
medical, public health or physical culture institutions;
(c) for roads and highways;
(d) for the reservation of land for the purpose of the Union,
state, any local authority or any other authority established by
Jaw in India; and
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(e) such other proposals for public or other purposes as may
from time to time be approved by a local authority or directed
by the State Government in this behalf.
U oder s. 8 various particulars had to be published and submitted to the State Government along with the development plan
inclusive of a report of the surveys carried out by the local authority, a report explaining the provisions of the development plan,
a report of the. stages by which it was proposed to meet the obligations imposed on the local authority by the development plan
and an approximate estimate of the cost involved in the acquisition of lands reserved for public purposes.
It will be noticed that up to this point the public have practically no say iri the matter as to how the development plan should
be prepared. S. 9 however gives such right to the public and
provides:
"If within two months from the date of publication
of the development pfan any member of the public communicates in writing to the local authority any suggestion relating to such plan, the local authority shall consider such suggestion and may, at any time before submitting the development plan to the State Government,
modify such plan as it thinks fit."
At this stage therefore every owner of land is given the right to
make suggestions for modification of the plan. He can consult
the plan and make his suggestions, principally with the idea that
his interest may not be adversely affected although there is nothing in the section which prevents him from making suggestions
generally with regard to the plan itself.
Under s. 10(1) the State Government is given the power to
sanction the development plan submitted to it for the whole of
the area, or sanction it separately in parts either without modification or with such modification as it considers expedient within
the time prescribed by the rules. If the development plan is
sanctioned separately in parts, then each part so sanctioned is
deemed' to be the final development plan for the purposes of the
succeeding provisions of the Act. All such provisions are to
apply in relation to such part as they apply in relation to a development plan relating to the whole of the area. Under sub-s. 8(2)
the State Government has to fix in its notification sanctioning the
plan a date not earlier than one month after the publication of
which the final development plan shall come into force. Sub-s. (3)
provides:
"If the development plan contains any pro)iosal for
the designation of any land for a purpose specified in
clause (b) or (e) of section 7 and if such land does not
vest in the local authority, the State Government shall
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(1968) 1 s.c.a.
not include the said purpose in the development plan un-
·1ess it is satisfied that the local authority concerned shall
be able to acquire such land by private agreement or
compulsory purchase within a period of ten years from
the date on which the final development plan comes into
force."
·
The idea behind this sub-section is that if any laμd is to be
set apart for public purposes such as parks etc. mentioned in
cl. (b) of s. 7 or any other public purpose which might be approved by a local authority or directed by the State Government in
terms of cl. (e) of s. 7, the State Government must examine whether it would be possible for the local authority to be able to
acquire such land by private agreement or compulsory purchase
within a period of ten years.
This acts as a check on the local
authority making too ambitious proposals for designating lands
for public purposes which they may never have the means to
fulfil. It is obvious that the local authority must be given a reasonable time for the purpose and the legislature thought that a
period of ten years was ·a sufficient one.
S. 11(1) empowers the
local authority to acquire any land designated in the development
plan for a purpose specified in els. (b) (c), (d) or (e) of s. 7 either
by agreement or under the Land Acquisition Act. Under sub-s.
(2) of. s. II the provisions of the Land Acquisition Act of 1894 as
amended by the Schedule to the Act are to apply to all such
acquisitions. The Schedule to the Act shows that s. 23 of the
Land Acquisition Act is to stand amended for the acquisition
under this Act with regard to the compensation to be awarded. In
fact it is for the benefit of the person whose land is acquired, as
he can get the market value of the land at the date of the publication of the declaration under s. 6 of the Land Acquisition Act in
place of s. 4.
Sub-s. (3) provides that if the designated land is
not acquired by agreement within ten years from the date specified under sub-s. (3) of s. IO or if proceedings under the Land
Acquisition Act are not commenced within such period, the t>wner
or any person interested in the land may serve notice to the local
authority and if within six months from the date of such notice
the land is not acquired or no steps as aforesaid are commenced
for its acquisition, the designation shall be deemed to have
lapsed. This provision again is for the benefit of the owner of
the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the
designation of his land as given in the development plan.
S. 12 obliges every person who desires to carry on any deve-
. lopment work in any building or in or over any land within the
limits of the said area after the date on which a declaration of
intention to prepare a development plan to apply to the local
authority for a commencement certificate for the purpose. 'Development' in this connection means carrying out of building or
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other operations in or over or under any land or the making of
any material change in the use of any building or other land. It
is to be noticed that the section imposes such restriction not only
from the date of preparation of the development plan but as
soon as there is publication of intention to prepare a development
plan.
In order to make it obligatory on the local authority to
direct its attention to all applications for permission to carry on
development work, the legislature provided by sub-s. (1) of s. 13
that
"The local authority on receipt of the application
for permission shall at once furnish the applicant with a
written acknowledgment of its receipt and after inquiry
may either grant or refuse a commencement certificate.
Provided that such certificate may be granted subject to such general or special conditions as the State
Government may by order made in this behalf direct."
Under sub-s. (2) if the local authority does not communicate its
decision within three months from the date of such acknowledg.
ment, such certificate shall be deemed to have been granted to the
applicant. Sub-s. (3) provides that no compensation is to be payable for the refusal of or the insertion or imposition of conditions
in the commencement certificate. This is subject to the provisions of ss. 14 and 15. Sub-s. (4) lays down that any work done
in contravention of s. 12 or of sub-s. (!) of s: 13 may be pulled
down by the local authority.
In this case, we are not concerned with the applicability of
ss. 14, 15 and 16. S. 17 which was attacked in these cases provides that:
"At least once in every ten years from the date on
which the last development plan . came into force and
where the plan is sanctioned in parts from the date on
which the last part came into force, the local authority
may. and if so required by the State Government after.
the date on which a development plan for any area or,
as the case may be, the part of such plan has come into
force shall. carry out a fresh survey of the area within
its juri$diction with a view to revising the existing development plan including all parts if sanctioned separately
and the provisions of sections 4 to 16 (both inclusive)
shall, so far as they can be made, applicable, apply in
respect of such revision of the development plan."
.
Strong objection wa~ taken to this section on the ground that
1t gave the: local auth?n'¥ concerned almost an unlimited power
of protracting the finahsation of the development plan if they wen
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[1968] I s.0.11.
so minded in which case the owners of property would be completely at the mercy of the local authority with respect to the
development of their own land.
Chapter III deals with the making of a town scheme. Under
s. 18 such a scheme is ordinarily to be made for the purpose {)f
implementing the proposals in the final development plan. It is
in the town planning scheme that provisions are to be made for
laying out or re-laying out of land, laying out of new streets or
roads, the construction, alteration and removal of buildings, the
allotment or reservation of land for roads, open spaces, recreation
grounds etc., lighting, water supply and the many other things
which have to be provided for in the laying out of a town.
Chapter IV deals with town planning schemes in general.
S. 21 shows that such a scheme may be made in accordance with
the provisions of the Act in respect of land which is in the course
of development or is likely to be used for building purposes, or has
already been built upon. S. 22 empowers local authority to declare
its intention to make a town planning scheme in respect of the
. whole or any part of land referred to in s. 21. Under s. 23 the
local authority is obliged to make in con~ultation with the Consulting Surveyor, a draft scheme for the area in respect of which
the declaration has been made within twelve months from the
said date. The other sections 24 to 29 generally follow the same
pattern with regard to town planning schemes as is to be found in
ss. 7 to 13 relating to development plans. S. 29 restricts the right
of owners of land to erect or proceed with any building or remove, pull down, alter, make
additions to or any substantial
repair to any building or change the use of any land or building
unless he has obtained the necessary permission from the local
authority, once there has been a declaration of intention to make
a scheme under s. 22.
S. 87 gives the State Government power
to make rules for carrying out the purposes of the Act.
We may now proceed. to take note of how the Bombay
Municipal Corporation proceeded to make the development plan
against which common complaints have been made. The gist of
the contents of the counter affidavits is as follows. After the Act
came into force on April I, 1957, the first respondent by resolution No. 409 dated July 7, 1958, declared its intention to prepare
a development plan for the entire area of Greater Bombay within
its jurisdiction. In terms of rule 3 framed under the Act, a map
of the said area accompanied the said declaration and within 15
days of the date of such declaration the first respondent despatched a copy of the same together with a copy of the map to the
State Government for publication in the Official
Gazette. On
September 18, 1958 the first respondent published its intention to
prepare a development plan by means of advertisements in newspapers circulating in Gre~ter Bombay a!ld affixing copies of the
advertisements on the notice boards at its head! office and other
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prominent places in the area. By the said publications, the first
respondent invited objections and suggestions from the public
within a period of two months, keeping open for inspection a copy
of the plan at its head office.